Untitled Texas Attorney General Opinion ( 1939 )

_, _. ..
TEEA~ORNEY GENERAL
OFTEXAS
GERALD C. MANN
X-
ATTORN- GIENEHAL
Phil R. Russell, D. 0.
R. H. Peterson, D. 0.
Everett W. Wilson, D. 0.
Members Texas State Board of Medical Examiners
1114 Medical Arts Building
San Antonio, Texas
Gentlemen:
Opinion No. O-1298
Re: Is the term wosteopath" synonymous
with or within the meaning of the
phrases %he practice of medicine."?
Your letter of August 17, 1939, with reference
to the atove question, has been received by this depart-
ment.
It is believed that your letter will be fully
answered by a review of the Texas cases involving a
construction of Article 4510, Revised Civil Statutes,
1925.
Article 4510, Revised Civil Statutes, 1925, pro-
vides:
"Any person shall be regarded as practicing
medicine within the meaning of this law:
"1. Who shall publicly orofess to be a physi-
sian or surgeon and shall,treat, or offer to
treat, any disease or disorder, mental or physical,
or any physical deformity or injury, by any
system or method, or to effect cures thereof;
“2. Or who shall treat or offer to treat
any disease or disorder, mental or physical, or
any physical deformity or injury by any system
or method, or to affect cures thereof and charge
therefor directly or indirectly, money or other
compensation."
Texas State Board of %dical Examiners, page 2 O-1298
The first discussion of the subject at hand is
found in the case of Ex Parte COLLINS, 121 S.W. 501,
223 U.S. 2SS, where, at page 503 the court said:
"As we understand relator in his brief and
argument, he concedes that the statute is broad
enough to cover his offense, but that the con-
stitutional provision just cited limits the
power of the Legislature to the regulation of
the ?ract,ice of medicine, and that osteopathy
is not practicing medicine. The Constitution,
when it demands the regulation of the practice
of medicine, was not attempting to say that the
Legislature was limited to any mode or method
of healing in order to regulate it; but the
word 'medicine' used in the Constitution means
the art of healing by whatever .scientific'or
supposedly scientific method may be used. It
means the art of preventing, curing, or allevia-
ting diseases, and remedying, as far as possi-
ble results of violence and accident. It
further.means something which is supposed to
possess, or some method which is supposed to
poksess, curative power; but if this definition
$f medicine is not correct, as stated in the
Constitution, yet there is no linitation upon
the power of the Legislature is said provision
of the Constitution which inhibits the Legisla-
ture of this state under its police power to
pfevent any one practicing any species or char-
acter of remedy to cure any real or supposed
ill that the body has or is subject to for pay.
Acts with somewhat similar provisions to the
act of the Thirtieth Legislature now under
consideration were held constitutional by the
Supreme Court of this state in the case of
Dowdell v. 1% Bride, 92 Tex. 239, 47 S.W: 524;
also by this court in the case of Logan v.
State,5 Tex. App. 306. So we hold that oste-
opathy is one of the methods of curing the ills
to which human flesh is heir, and is one
of the methods of curing covered by the act of
the lhirtieth .Legislature. In other words, in
order for one in this state to practice osteopathy
Texas State Board of i*ledical
Examiners, page 3 O-1298
for pay, he must secure a license, as provided
for by the act of the Thirtieth Legislature.
***w
It is significant to note that Relator, a physi-
cian practicing osteopathy in El Paso, Texas, specifi-
cally urged that the practice of osteopathy is not prac-
ticing medicine. The court rejected this contention.
Thereafter, the court in the case of Newman vs.
State, 124, S.W. 956, held likewise, and construed the
opinion in Ex Parte COLLINS, supra, as follows:
"We there held that the word 'medicine,' as
used in the Constitution, embraced the art of
healing, by whatever scientific or supposedly
scientific method, the art of preventing, cur-
ing, or alleviating diseases, and remedying as
far as possible results of violence and accident,
and that it was broad enough to include any
method that was supposed to posses curative
power, and authorized the passage of the act in
question requiring physicians and surgeons, in-
cluding osteopaths, to obtain a license before
engaging in the practice of their profession.!*
Later in the case of COLLINES vs. STATE, 152 S.W.
at p. 1049, the court further said:
"The main contention of appellant seems to
be that it was incumbent upon the state to prove
that he practiced, either generally or on this
particular patient, by some particular 'system
or method,' and, as the state had not so proven
that he practiced by some particular 'system or
method,' that therefore his conviction was er-
roneous..' riedo not so understand the statute.
It is not incumbent upon the state to show that
his practice was by any system or method, but
simply aud solely that he treated a disease or
disorder, mental or physical, and charged there-
for, whether that treiitnentwas by any system
or method or not. In other words, the law, as
we understand it, does not permit any one to
Texas State aoard of Medical Examiners, page 4 O-129$
treat any disease or disorder and charge there-
for, without first getting a license or a veri-
fication license and having it properly registered
in the district clerk's office of his residence,
whatever his method or system of treatment,
whether he has any method or system or Ilot.'$his
act of the Legislature has many tiinesbeen before
this court and construed, and as we understand
their trend, if not direct holding, all of the
decisions have been to the above affect. Sea
Milling v. State, 150 S.;J.435; Stiles v. State,
148 S.W. 326; Ex parte Collins, 57 Tex. Cr. R. 2,
121 S.W. 501; Collins v. State, 223 U.>. 288,
32 Sup. Ct. 286, 56 L. Ed. 439; Singh v. State,
146 S.W. $91; Germany v. State, 62 Tex. Cr. R.
276 Rawle 157, 136 S.W. 786; Newman v. State, 58
Tex. Cr. R. 223, 124 S.rJ.956."
Finally, we quote from Mr.Justice Stone of the
U.S. Supreme bourt, speaking in the case of Hayman v.
City of Galveston 47 upreme Court, 363, 273 U.S. 414,
71 L. Ed. 714 as'follzws:
l * 1
"Under the Texas bonstitution and Statutes,
any one who shall 'offer to treat any disease
or disorder, mental or physical, or any physical
deformity or injury, by any system or method or
to effect cures thereof' is a physician and may
be admitted to ractice within the state."
The foregoing cases represent the construction
of Article 4510, supra, by our courts. The practice
of osteopathy has consistently been held to be iriithin
the phrase "the practice of medicine."
We trust this answers your inquiries satisfacto-
rily, and we remain
Yours very truly
ATTORNEY GENERAL OF TFX.iS
BY Wm- J. Fanning
Assistant
WmJF:ob/PAM
APPROVED SEP l$, 1939
GERALD C. MANN APPROVED, OPINION COMMITTEE
ATTORNEY GENERAL OF TEXAS BY BviB,CHAIRMAN